A review by the Attorney General (AG) has found that Crown prosecutors and police officers are routinely failing in their duties to disclose vital evidence in criminal trials. The report‘s publication follows the introduction of a new Code for Crown Prosecutors.
The AG, Geoffrey Cox QC MP, published the Government’s ‘Review of the efficiency and effectiveness of disclosure in the criminal justice system’. The report’s first finding is that “primary legislation continues to provide an appropriate disclosure regime, but in practice the system is not working as effectively or efficiently as it should”.
The collapse of trials and disclosure failures
Over the past year, the media has been flooded with reports of cases collapsing mid-trial or convictions being quashed as a result of disclosure failures. In December 2017, the rape case against Liam Allan collapsed when text messages were disclosed three days into the trial, proving that the alleged victim had approached him for “casual sex”. The text messages were disclosed well past the deadlines set by the Criminal Procedure and Investigations Act 1996 (CPIA). Had the texts been disclosed in accordance with the police and Crown’s legislative obligations, the extensive public spending necessary to bring a case to trial could have been significantly reduced.
The report follows a string of cases which were discontinued due to disclosure errors. As Max Hill QC takes over as Director of Public Prosecutions (DPP) this month, he faces the challenge of reinstating public faith in the efficacy of criminal prosecutions. Not only do collapsed trials impact on the public purse, but there is also a significant emotional cost to wrongly-prosecuted defendants, as well as witnesses and their families, all of whom a DPP must answer to when failings affect the continuation of a criminal prosecution.
Review of the efficiency and effectiveness of disclosure in the criminal justice system
In the report’s foreword, Mr Cox QC states: “Cases that collapse or stayed and convictions that are quashed, because of serious deficiencies in disclosure are fair neither to the complainant or the defendant nor to the public and they undermine confidence in the administration of criminal justice.”
The report found that the structure of the current legislation is sound and does not need revisiting. The report stated that instead, prosecutors and police need to exercise due care in following the statutory disclosure regime, but also take care not to be too inflexible and apply the disclosure rules too rigidly. A recommendation, borrowed from a previous report by Richard Horwell QC, that prosecutors ‘if in doubt, should disclose’ is given among other practical guidance for prosecutors and police.
For too long, material that would clearly assist a defendant’s case has been marked as ‘not disclosable’ by the Crown, due to oversight or failures in the Crown’s understanding of the CPIA. Another important observation in the report is that some material may not be disclosable in isolation but may, when taken together with other items, have the cumulative effect of assisting the defence or undermining the prosecution’s case, consequently making it disclosable.
The review also found that investigators in criminal prosecutions were not pursuing reasonable lines of enquiry and police were not thoroughly checking the case papers before a submission to the Crown for a charging decision; this ultimately leads to a greater workload for prosecutors and potentially the submission of cases to the Crown that falls short of the charging threshold.
Helpfully, the AG’s review comes less than a month after the implementation of a new Code for Crown Prosecutors.
New Code for Crown Prosecutors
The Code for Crown Prosecutors 2018 came into force on 26 October 2018 and included guidance for the charging of suspects that had not been updated since 2013. The Code governs all CPS prosecutions. It sets out the general principles which must be applied when making decisions about whether or not a person should be charged.
The most notable revision requires prosecutors to “identify evidential weaknesses”, they should ask themselves whether any material exists that “may affect the sufficiency of the evidence” and should take into account changes in circumstances including the receipt of unused material.
The strong message the new Code brings on disclosure is unsurprising, given the systematic failings identified over the past year. However, it is arguable that most of the 2018 revisions are common sense and simply serve to underline prosecutors’ continuing duty to review. This is an entrenched principle that should already see prosecutors continuously reviewing their caseload to decide if emerging factors create a question mark over a suspect’s guilt.
We welcome the new code and the AG’s strong message on the need for a more robust investigation.